In my conversation with Senator Kyl Friday, I pressed the idea of certain amendments that might make an immigration reform package much more acceptable to centrists on the issue. I have written about them generally over the past three weeks, but I thought it would be useful to take two of these areas and actually put forward the sort of language that would strike critics like me as responsive to our concerns.

The first area concerns making the “triggers” real by postponing not just Z status but also the bestowal of probationary benefits until the triggers have been pulled, certified as pulled by the president, and validated by Congress. The second set of changes I propose make the triggers harder to pull by increasing their thresholds (some thresholds have already been raised.) The third set of changes differentiates between illegal immigrants whose primary, or native language is English or Spanish, and everyone else, and obliges of the latter a positive showing of loyalty and an affirmative decision by a government official allowing probationary status. These changes will focus most of the initial security screening on immigrants from countries much more likely to have incubated jihadists than purely economic migrants. Of course there will be the possibility of jihadists within the community of English and Spanish speaking illegal immigrants, but it is a real improvement to force at least the immigrant populations from “countries of special interest” into a category opf greater scrutiny prior to regularization.

There are other amendments which are necessary, but these seem to me to be the most pressing. To those who reject any attempt to pass the bill should realize that they would be better served at improving the bill to the greatest extent possible against the possibility it will be passed.

(a)With the exception of the probationary benefits conferred by Section 601(h), [T]he provisions of Subtitle C of Title IV, and the admission of aliens under Section 101(a)(15)(H)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)), as amended by Title IV,

(i) the programs established by Title IV of this Act; and

(ii) the programs established by Title VI of this Act that grant legal status to any individual or adjust the current status of any individual who is unlawfully present in the United States to that of an alien lawfully admitted for permanent residence,shall become effective on the date that the Secretary submits a written certification to the President and the Congress that the following border security and other measures are funded, in place, and in operation:

(1) Staff Enhancements for Border Patrol: The U.S. Customs and Border Protection (CBP) Border Patrol has, in its continued effort to increase the number of agents and support staff, hired18,000 24,000 agents;

(2) Strong Border Barriers: Have installed at least 200 400 miles of vehicle barriers, 550 miles of fencing, and 70 ground-based radar and camera towers along the southern land border of the United States, and have deployed 4 Unmanned Aerial Vehicles and supporting systems;

(3) Catch and Return: The Department of Homeland Security is detaining all removable aliens apprehended crossing the southern border, except as specifically mandated by law or humanitarian circumstances, and U.S. Immigration and Customs Enforcement (ICE) has the resources to maintain this practice, including resources to detain up to 27,500 aliens per day on an annual basis;

(4) Workplace Enforcement Tools: As required through all the provisions of Title III of this Act, the Department of Homeland Security has established and is using secure and effectiveidentification tools to prevent unauthorized workers from obtaining jobs in the United States. These tools shall include, but not be limited to, establishing:

(i) strict standards for identification documents that must be presented in the hiring process, including the use of secure documentation that contains a photograph, biometrics, and/or complies with the requirements for such documentation under the REAL ID Act; and

(ii) an electronic employment eligibility verification system that queries federal and state databases to restrict fraud, identity theft, and use of false social security numbers in the hiring process by electronically providing a digitized version of the photograph on the employee’s original federal or state issued document or documents for verification of the employee’s identity and work eligibility; and

(5) Processing Applications of Aliens: The Department of Homeland Security has received and is processing and adjudicating in a timely manner applications for Z nonimmigrant status under Title VI of this Act, including conducting all necessary background and security checks.

(b) It is the sense of Congress that the border security and other measures described in such subsection can be completed within 18 months of enactment, subject to the necessary appropriations.

(c) The President shall submit a report to Congress detailing the progress made in funding, appropriating, contractual agreements reached, and specific progress on each of the measures include in (a)(1)-(5):

(i) 90 days after the date of enactment; and

(ii) every 90 days thereafter until the terms of this section have been met.If the President determines that sufficient progress is not being made, the President shall include in the report specific funding recommendations, authorization needed, or other actions that are being undertaken by the Department.

Then, to Section 601(h):

(h) Treatment of Applicants whose primary language is English or Spanish-

(1) IN GENERAL- At such time as the president certifies and the Congress by joint resolution agrees that the “Effective Date Triggers” of Section 1 of this act have been implemented, an alien may apply for Z nonimmigrant status. An alien whose primary language is either English or Spanish who files an application for Z nonimmigrant status shall, upon submission of any evidence required under paragraphs (f) and (g) and after the Secretary has conducted appropriate background checks, to include name and fingerprint checks, that have not by the end of the next business day period of 30 business days produced information rendering the applicant ineligible –

(A) be granted probationary benefits in the form of employment authorization pending final adjudication of the alien’s application;

(B) may in the Secretary’s discretion receive advance permission to re-enter the United States pursuant to existing regulations governing advance parole;

(C) may not be detained for immigration purposes, determined inadmissible or deportable, or removed pending final adjudication of the alien’s application, unless the alien is determined to be ineligible for Z nonimmigrant status; and

(D) may not be considered an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3))) unless employment authorization under subparagraph (A) is denied.

(2) Timing of Probationary Benefits.”No probationary benefits shall be issued to an alien until the alien has passed all appropriate background checks or the end of thenext business day, the end of a period of 30 business days whichever is sooner.

(3) Construction. Nothing in this section shall be construed to limit the Secretary’s authority to conduct any appropriate background and security checks subsequent to issuance of evidence of probationary benefits under paragraph (4).

(4) Probationary Authorization Document – The Secretary shall provide each alien described in paragraph (1) with a counterfeit-resistant document that reflects the benefits and status set forth in paragraph (h) (1). The Secretary may by regulation establish procedures for the issuance of documentary evidence of probationary benefits and, except as provided herein, the conditions under which such documentary evidence expires, terminates, or is renewed. All documentary evidence of probationary benefits shall expire no later than six months after the date on which the Secretary begins to approve applications for Z nonimmigrant status.

(5) Before Application Period- If an alien is apprehended between the date of enactment and the date on which the period for initial registration closes under subsection (f)(2), and the alien can establish prima facie eligibility for Z nonimmigrant status, the Secretary shall provide the alien with a reasonable opportunity to file an application under this section after such regulations are promulgated.

(6) During Certain Proceedings- Notwithstanding any provision of the Act, if the Secretary determines that an alien who is in removal proceedings is prima facie eligible for Z nonimmigrant status, then the Secretary shall affirmatively communicate such determination to the immigration judge. The immigration judge shall then terminate or administratively close such proceedings and permit the alien a reasonable opportunity to apply for such classification.

The add new Sections 601(i) and (j) (renumbering the following paragraphs as well):

(i)Treatment of Applicants whose primary language is not English or Spanish-

(1)IN GENERAL—At such time as the president certifies and the Congress by joint resolution agrees that the “Effective Date Triggers” of Section 1 of this act have been implemented, an alien may apply for Z nonimmigrant status. An alien whose primary language is neither English or Spanish who files an application for Z nonimmigrant status shall not be eligible for probationary benefits provided in Section 601(h). These aliens may apply for the Z nonimmigrant status, and will be granted such status upon a showing that

(1)the alien is loyal to the United States and does not support any organization identified as supporting terror by the Department of State or the Department of Justice.

(2)during the pendency of the background investigation into the loyalty of aliens covered by this section, such aliens may not be employed and may not leave the country or the state from which they have applied for Z nonimmigrant status except in such cases where an employer has requested a work authorization and has undertaken to file monthly reports on the status of the Z nonimmigrant applicant.